Arbitration is a creature of contract. It is a mode of dispute resolution which is only available to parties who have agreed to resort to it. Yet, it is widely perceived as the most suitable and the dominant method for the settlement of international commercial disputes. Why is it, then, that parties must opt in for a solution which appears as the most natural one in the community? The Article explores whether arbitration could become a default solution and thus lose its contractual foundation. The core of the Article discusses the numerous objections that such a proposition raises. Most importantly, I argue that the legitimacy of arbitrators would not be significantly lower than the legitimacy of courts, and that recent developments in specialized fields of international arbitration have shown that arbitrators can serve the public functions of courts. At the end of the Article, a model of non-consensual arbitration is proposed.

This volume focuses, comparatively and dynamically, on the reception of the ECHR regime within the national legal orders of the Member States of the Council of Europe. The definition of "legal order" used is expansive, including the legislature, the executive, the judiciary, and any public authority established through constitutional and public law that produces or applies legal norms. The central inquiry of the book is how, through what mechanisms, and to what extent, the national legal orders of the Member States are coordinated with, adapted to, or adjusted by the ECHR - emphasizing both the cooperative and conflictive aspects of reception.

The book brings together a series of structured-focused comparisons: each chapter undertaking a comparative case study which collects and analyzes basic data on the reception of the ECHR within national legal orders. These structured-focused comparisons, whose purpose is not so much to test theory, but to develop appropriate theoretical concepts and to generate hypotheses, work on the assumption that comparing two, relatively like cases offer a better opportunity to build more general theoretical frameworks.

Through an examination of a set of general questions about how national decision-makers - governments, legislators, and judges - have reacted to the evolution of European human rights law, the chapters enquire how various actors within national legal orders could take decisions to either hinder or to enhance the status of the ECHR. What interests or values, individual or corporate, are judges maximizing? How has this affected the evolution of the ECHR? How do national constitutions take into account treaty law (or international law generally)? Do separation of powers doctrines (or other explicit provisions of public law) permit or prohibit the judicial review of the legal validity of legislative and executive acts with reference to "higher" norms? To what extent should the federal or unitary nature of a Member State make a difference to reception? That is, should we expect the territorial distribution of powers and competences - judicial, legislative, administrative - to have an effect on the status or effectiveness of the ECHR, and if so, how?

On November 26th, the British Institute for International and Comparative Law will sponsor an event on "Business, the International Rule of Law and Human Rights." Speakers will include Mary Robinson (formerly, UN High Commissioner for Human Rights) and Robert McCorquodale (Director, British Institute of International and Comparative Law).

On October 17th, the Council on Foreign Relations held a symposium on International Law and Justice. Videos of the three sessions - International Obligations Toward Victims of Mass Atrocity; U.S. Engagement in the International Legal System; and the Darfur Case - are available here, here, and here.

The University of Sheffield's Centre for Law in its International Context will host an introductory workshop today for its 2008-2009 seminar series on "International Organisations and the Idea of Autonomy." Today's program is available here. Here's background on the seminar series:

International law seems to both require and fear institutional autonomy. The twentieth century’s “move to institutions” is often described in terms of the pursuit of an international rule of law to contain the seemingly uncontainable excesses of state sovereignty. Yet, particularly recently, the rule of law appears threatened by overly–autonomous, largely unaccountable global institutions. Whilst this paradox seems to be well recounted in the literature, particularly in terms of international institutional law, and within particular institutional contexts (e.g. EU or international trade law), the issues tend to be narrowly–focused. Either there has been an “internal” focus on particular institutions – e.g. the EU’s authority over its members, the centralisation of WTO Dispute Settlement, etc. – or a largely “external” perspective on organizations as autonomous (and thus “one–dimensional”) actors in international law, such as in relation to their exercise of sovereign powers.

This research project aims to engage with the idea of international organisations as autonomous entities, both in terms of control and influence over their membership and as independent actors in the international system. It attempts to bridge some of these gaps by considering the idea of autonomy in international governance in historical and theoretical context; by examining how particular themes of institutional law cannot be considered in isolation from this broader context; and how the independence of particular institutions within the international system may affect their internal influence over their membership; or, vice versa, how a particular member–institution relationship may shape and limit the institution’s authority and independence as an autonomous actor in international politics.

On November 5-6, 2008, the Embassy of the Republic of Poland in London, in co-operation with the Lauterpacht Centre for International Law, will host a conference to commemorate the 110th anniversary of the birth of Sir Hersch Lauterpacht. The program is available here.

The New York University Journal of International Law and Politics's annual symposium will be held next week, on October 28th and 29th. The symposium's theme is "The Normalizing of Adjudication in Complex International Governance Regimes: Patterns, Possibilities, and Problems." Judge Bruno Simma of the International Court of Justice will be the keynote speaker. A full program is available here.

Jochen von Bernstorff (Max Planck Institute for Comparative Public Law and International Law) will give a talk today at the University of Cambridge Lauterpacht Centre for International Law on "Hans Kelsen as an International Lawyer."

Thursday, October 23, 2008

On October 13th, Judge Dennis Byron, President of the International Criminal Tribunal for the Rwanda, addressed the UN General Assembly to present the Tribunal's Annual Report. The full address is now available here.

On November 11, 12, and 13, 2008, Andrés Rigo Sureda, formerly Deputy General Counsel, the World Bank, will deliver the 2008/9 Sir Hersch Lauterpacht Memorial Lectures at the University of Cambridge. The topic of the lectures is "Discretion and Policy in Investment Treaty Arbitration."

This book provides a comprehensive analysis of the use of peace agreements from a legal perspective. It describes and evaluates the development of contemporary peace processes and the peace agreements that emerge. The book sets out what is in essence an anatomy of peace agreement practice and interrogates its relationship to law.

At its heart the book grapples with the role of law in ending violent conflict and the broader questions this raises for the relationship of law to social change. Law potentially plays two key roles with respect to peace agreements: first, to the extent that peace agreements themselves form legal documents, law plays a role in the 'enforcement' or implementation of the peace agreement; second, international law has a relationship to peace agreement negotiation and content, in its regulatory guise. International Law regulates self-determination, transitional justice, and the role of third parties. The book documents and analyses these two roles of law.

In doing so, the book reveals a complex dynamic relationship between the peace agreement as a legal document and the role of international law in which international law and concepts of domestic constitutionalism are being re-shaped. The practice of negotiating peace agreements is argued to be producing a new law of the peacemaker-or lex pacificatoria that connects developments in international law with new forms of domestic constitutional law in a set of hybrid relationships. This law of the peacemaker potentially forms part of a broader 'law of peace' that moves beyond the traditional concept of law of peace as merely 'the rest of international law' once the laws of war are subtracted.

The new lex pacificatoria stands as an account of the way in which international law shapes and is shaped by peace agreements. The book proposes an ambivalent response to 'this new law' which connects to contemporary debates about the force of international law and its appropriate relationship with domestic constitutonalism.

Jennifer Martinez (Stanford Univ. - Law) will give a talk today at the University of California, Berkeley School of Law International Law and International Relations Workshop on "Public Opinion and Foreign Affairs."

Nils Melzer (International Committee of the Red Cross) will give a talk today at the LSE International Humanitarian Law Project Public Lecture Series on "The ICRC's Clarification Process on the Notion of Direct Participation in Hostilities under IHL."

Judith Resnik (Yale Univ. - Law) will give a talk today at the University of Toronto Faculty of Law Constitutional Roundtable on "Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors."

Wednesday, October 22, 2008

John Bellinger (Legal Adviser, U.S. Department of State) delivered the keynote address at the ILA (American Branch)'s International Law Weekend last Friday. Bellinger's topic was "Reflections on Four Years as Legal Adviser"; the address can be found here.

From November 10th through November 12th, the Asia Pacific Centre for Military Law at Melbourne Law School will host a conference to commemorate the sixtieth anniversary of the judgment in the Tokyo War Crimes Trial. The conference will include a public lecture - "The Tokyo War Crimes Trial: Humanity’s Justice or Victors’ Justice?" - delivered by Professor Hisakazu Fujita. The program is here.

David M. Ong (Univ. of Essex - Law) will give a talk today at the University of Nottingham School of Law-International Law Association (British Branch) Regional Seminar Series on "From International to Transnational (Environmental) Law?"

Robert Wai (York Univ. - Osgoode Hall Law) will give a talk today at the International Law Association (British Branch)-University College London Faculty of Laws International Law Seminar on "The Idea of Transnational Private Law."

Drawing on a classic essay by Hans Kelsen, this Article addresses the status of indigenous peoples in international law. It argues that the criteria for determining the legal existence of indigenous peoples in international law are a function of the nature and purpose of international indigenous rights. The twentieth century legal history of international indigenous rights, from their origins in international protection of indigenous workers in colonies to their contemporary expression in the United Nations Declaration on the Rights of Indigenous Peoples, demonstrates that their purpose is to mitigate injustices produced by how the international legal order treats sovereignty as a legal entitlement that it distributes among collectivities it recognizes as states. The criteria by which indigenous peoples can be said to exist in international law relate to their historic exclusion from the distribution of sovereignty initiated by colonization that lies at the heart of the international legal order.

This paper examines the impact of international law on the ability of states to mitigate the effects of financial crises. It focuses on the invocation of investment treaty disciplines in the aftermath of the 2001-2 Argentine financial crisis and the adjudication of Argentina’s defence of a state of necessity, under both subject treaties and at customary international law. The paper uncovers three interpretative methods in the jurisprudence on the relationship between the treaty exception and customary plea of necessity: methodologies I (confluence), II (lex specialis) and III (primary-secondary applications). Method I is the dominant approach in the jurisprudence and the most restrictive of the three readings. The paper argues that method I is mistaken both on a careful interpretation of the two legal standards and on a broader historical analysis of the emergence of investment treaty norms. Given these substantive flaws, the paper isolates the motivations to account for the popularity of this method through a close reading of the awards. These reveal continuing tensions in the field, not least the problematic suggestion that a single value of protection should exclusively inform our understanding of the purpose of investment treaties. These sociological features of investor-state arbitration should, it is suggested, inform our choice on other interpretative methods. This comes down to an election between methods II (lex specialis) and III (primary-secondary applications). Method III is the most convincing and coherent reading of the relationship between the two legal standards. The paper concludes by offering a framework to address the key interpretative questions implicated in that method: (i) the identification and scope of the notion of “public order” and a state’s “essential security interests”; and (ii) the appropriate test of “necessity” or means-end scrutiny.